Re Ronquillo Marites Galiza

CACV 231/2022

[2022] HKCA 1355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2022

(ON APPEAL FROM HCAL NO 1081 OF 2019)

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Before:  Hon G Lam JA and Andrew Chan J in Court

Date of Hearing:  30 August2022

Date of Judgment:  19 September 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 31 May 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 1 April 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 9 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Philippine national born in 1973.  She was permitted to remain in Hong Kong as a visitor until 15 June 2016, but she did not depart, and has overstayed.  She surrendered herself to the Immigration Department on 23 June 2016, and raised her non-refoulement claim on 28 September 2016.

3.The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed by her husband who has a history of being violent towards her.  The factual background was summarized at paragraphs 6(a)  to 6(p)  of the Board’s decision.

4.By notice of decision dated 9 August 2018, the Director assessed the applicant’s claim on all the applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4]  and BOR 2 risk.[5]

5.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 12 December 2018, during which the applicant gave oral testimony and answered questions from the Board, with assistance from a Tagalog language interpreter. The Board found that the applicant was a victim of domestic violence perpetrated by her husband.   However, the Board noted that the applicant’s evidence was that she did not flee her country because of the violence but essentially because of her fear that her husband would disclose a fraudulent act they were both involved in concerning the transfer of a piece of land while she was employed in a law office which would lead to her arrest and prosecution if she returned to the Philippines.  Moreover, the Board was satisfied that effective state protection would be available against the husband’s abuses and that internal relocation would be viable for the applicant who was highly educated and had an extensive work history in the Philippines.  In conclusion, the Board found that there was no real risk of harm in the event of refoulement. Accordingly, in its decision issued on 1 April 2019, the Board dismissed the applicant’s appeal on all the applicable ground.

Decision of the court below

6.On 23 April 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, she stated that the Board did not believe that her life is at risk of any harm or that her ex-husband is a drug user.

7.Following consideration of the documents only, on 31 May 2022 the Judge refused to grant leave to apply for judicial review.  The reasons were set out at [13] – [17] of the Form CALL-1 as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16.  There is no valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

Appeal to this Court

8.On 7 June 2022, the applicant filed her Notice of Appeal against the Judge’s decision, in which she stated that she wished to challenge the decision, but did not raise any specific grounds of appeal.

9.The applicant lodged written submissions for the appeal on 27 July 2022, in which she briefly reiterated the factual basis of her claim.  However, she did not raise any specific arguments, or identify any errors in the Judge’s decision.

10.At the hearing before us, the applicant produced a document which she asked us to take into account in considering the appeal.  It was a certificate of discharge from jail in relation to her husband.  She said that it showed that her husband had been in and out of prison for drug offences.  She also said that her husband had contacted her mother and her son and asked for her whereabouts.

Discussion

11.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

12.In the present case, the Board accepted the applicant’s evidence that she had been abused by her husband.  The new document that she submitted at the hearing showed that her husband had been a criminal and prisoner but, quite apart from the fact that the applicant had not shown that she could not have with reasonable diligence obtained the document for use in the court below, it did not add anything useful for the purposes of her appeal.  The Board rejected the applicant’s claim for non-refoulement protection based on its findings that effective state protection would be available and that internal relocation would be viable, concluding that there was no real risk of harm in the event of refoulement. These findings are within the province of the Board, and would not be affected by the prison records of the applicant’s husband.  The court will not interfere with such assessments by way of judicial review unless they are vitiated on public law grounds.  There does not appear to be any such public law ground in this case.

13.Further, no ground has been advanced by the applicant to show that there was any error in the Judge’s decision to refuse leave to apply for judicial review.

14.For these reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person